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DOJ: 'Novel Legal Issues' Necessitated Surveillance Delay
Among the unanswered questions from the nine-hour delay in May for eavesdropping on the communications of Iraqi insurgents: Why did it take four hours for an emergency-FISA-warrant request to be sent to the Justice Department's FISA office after the National Security Agency's general counsel determined there was sufficient probable cause?
According to Dean Boyd, the spokesman for the DOJ's National Security Division, Justice Department lawyers who were reviewing the case on May 15 weren't initially satisfied with NSA's determination. Ultimately, it's the Justice Department that argues before the FISA Court for warrants, meaning that it's DOJ lawyers who would face criminal penalties if the court found, after the fact, that the government hadn't cleared the probable-cause threshold.
"This is not something we take lightly," Boyd told me. "We had to resolve very novel legal issues as quickly as possible while abiding by the statute." Boyd, citing classification restrictions, would not elaborate on what those "novel legal issues" were, but said that the four hours were taken up by DOJ lawyers' discussions with NSA and FBI officials before the case was taken to DOJ's FISA office at 5:15 p.m on the fifteenth.
That's left some officials familiar with the case perplexed. "The [probable cause] is the easiest part of the puzzle," says a government official. "It's not probable cause like it is in a criminal case, it's just finding that the target of the surveillance is an agent of a foreign power." In the case of Iraqi insurgents who had kidnapped U.S. troops, the source says, that should be a near-instantaneous finding.
"Had [the DoJ lawyers] chose to ignore the requirements of FISA, I suspect they would be the subject of substantial criticism from you and others," Boyd rejoined. "If anything, this anecdote demonstrates the absurdity of extending FISA's Fourth Amendment protections to Iraqi insurgents battling U.S. troops. It also demonstrates the lengths to which the Justice Department goes in order to comply with the legal requirements of FISA, which prior to the Protect America Act, applied to this particular surveillance."
Any suggestion that the process was weighted down by needless bureaucracy, Boyd says, is "woefully uneducated." He adds that focusing on the timeline is "irrelevant," since "if we had no such requirements for a legal process, we wouldn't have had [the delay.]"
Comments (14)
The DuDe wrote on October 1, 2007 11:30 AM:Sounds like those kidnapped American Soldiers were used as political pawns.
If lives were in danger, and the soldiers could have been found by going around FISA, why wouldn't the Bush Admin NOT just tap those phones / servers, get the info, save the soldiers (Like Jack Bauer), and THEN say "See, this is why we need to scrap FISA". Either they we too disorganized to deal with a life or death situation in enough time to save the lives of those soldiers, or they decided to sacrifice their lives for political gain.
I may be paranoid, but i just can't believe that all of the sudden we are supposed to accept that the Bush admin is all of the sudden interested in following the rule of law.
Anonymous wrote on October 1, 2007 11:31 AM:5/15/07
comey testimony 11am
Wiretap program as it existed in 2004 said to be illegal under oath.
1253pm
doj lawyers start debate
133-230pm
CQ wire service transcript of comey testimony published
5:15 debate resolved, get signature
why not clement who was in DC?
carolyn wrote on October 1, 2007 11:37 AM:instead go to Gonzo, wasting 2 hours?
was the unique legal issue wiretapping an american? like maybe the family of the kidnapped?
Another front page opportunity that the MSM is avoiding. Boy, for leftwingers they sure are good at missing opportunities.
Steve in Seattle wrote on October 1, 2007 11:57 AM:I would take the legal issue statement at face value.
It could be a privilege issue: they spidered or otherwise stumbled onto a conversation with a cleric or attorney.
Or they got into information on another ongoing investigation.
Or they caught a person they would not give up for political reasons.
Or it could be a technology issue. Their voice recognition poor and produces false positives and inconsistencies. What if you get the following message from following the communication of a known terrorist?
We have the kidnapped soldiers, we have them in the Paris Hilton, and will dye by their hair if necessary. That (blond? bomb?) got hot and nearly blew the entire party.
Michael wrote on October 1, 2007 12:05 PM:What another crock of garbage being spewed by these liars. Probable cause is so easy to establish it's laughable. The only purpose of FISA is to make sure that political hacks, like the criminals in power, aren't using wiretapping for political purposes, like to wiretap the DNC, which they are probably doing anyway. It really is pathetic.
Bob's not Right wrote on October 1, 2007 12:09 PM:In early 2002 the Foreign Intelligence Surveillance Court judge reaches an agreement with government lawyers on warrantless wiretaps ALREADY conducted without court approval. These applications are to be “Tagged” and the information used cannot be the basis for a FISA warrant, instead independently gathered information must provide the justification for a FISA warrant.
In mid May of 2002 Chief Judge Rehnquist appoints Coleen Kollar- Kotelly presiding judge of the FISC. She is informed of the secret surveillance program and agrees not to tell the other 10 judges; she also accepts the previous “Tagging” compromise.
Sometime in early 2004 James Baker discovers that the governments failure to share information about it’s spying program has rendered the “tagging” agreement useless. Baker alerts judge Kollar-Kotelly who complains to Ashcroft prompting a temporary suspension. The judge then requires high level Justice Department officials to “certify” the information was complete or face possible perjury charges.
I posted some of this a couple of months ago but I believe that the “tagging” issue is the “Novel legal issue” that they are referring to.
It was the early abuse of the FISA court and the unprecedented scope of the surveillance the caused the push back from the court. This FISC judge was going to hold DOJ employees in contempt of court unless they dotted the I’s and crossed the t’s, as should any good oversight would.
sailmaker wrote on October 1, 2007 12:23 PM:DoJ had to contemplate the legalities of their violations of FISA on the soldiers' lives dime???
My response is intemperate for a public space. I'll let Jack Goldsmith do it. 'The Terror Presidency', W.W. Norton. 2007, page 182 (bear in mind that his book went through the national security censorship).
Quote:
On January 17, 2007, Gonzales informed the Congress that the executive branch, under pressure from Congress and the courts following the leak, had worked out an 'innovative' arrangment witht he Foreight Intelligence Surveillance Court - the secret court that runs the FISA system, and that the administration had originally bypassed-to achieve the government's goals of 'speed and agility' in surveillance with the four courners of the FISA law. In 2004 I and others in the Department of Justice had begun the proscess of working with the FISA court to give the Comander in Chief much more flexibility in tracking terrorists. From the beginning the administration could have taken these and other steps to ramp up terrorist surveillance in indisputably lawful ways that would have minmized the likelihood of a devastating national security leak. But only if it had been willing to work with the FISA court or Congress. The White House had found it much easier to go it alone, in secret. Unquote, typos are mine.
They knew they had a problem, at least in 2004, if not in December 2003, when Goldsmith started withdrawing Yoo's opinions (some which not even the NSA lawyers were allowed to see regarding the TSA).
Somebody should wave Gonzales' testimony and Goldsmith's work in front of Boyd and ask why, given 2 1/2 years of contemplation, the DoJ lawyers suddenly needed to put American troops lives on the line to cover their own potentially criminal asses.
melior wrote on October 1, 2007 12:43 PM:"if we had no such requirements for a legal process, we wouldn't have had [the delay.]"
If this were a dictatorship, things would be a heck of a lot easier. So long as I'm the dictator.
Heh. Heh.
JMOHR wrote on October 1, 2007 1:21 PM:FISA already has the provision to permit tapping with the warrant coming afterwards. This is the usual tactic of narrow right wing authoritarians. They will deliberately complicate the matter and slow the process down while hoping for a disaster to befall the common folk to justify further degredation of constitutional safeguards.
Mary wrote on October 1, 2007 1:24 PM:I'm starting to understand the meaning of the phrase, "pure comedy gold."
A. Under FISA there is absolutely no way Iraqi insurgents in Iraq are getting 4th amendment rights, period. Even with a warrant requirement for scarfing up communications, there is only a requirement that those communications involve an agent of a foreign power - not even an agent of a foreign power who is doing anything wrong. So there is zero chance that upon a showing that they are tracking Iraqi insurgent communications they would not get whatever warrant they want and so could start the 72 hour clock running, free from concerns about all those FISA violations that somehow only became a source of trouble and concern when "teh(sic) program" began to actually have oversight.
B. The concern over FISA violations - really they need to get pinned down on this. And I'm thinking the word "only" is very missing from their vocabulary. Because all you need is the word "only" to say that they were collecting "only" insurgent to insurgent communications and were going to be making a warrant application prior to the 72 hours to make it pretty darn clear that only the most timorous of lawyers would be worried that, under FISA and with appeal rights as well - a judge would say there was no probable cause. How can you say that you were "only" tracking insurgent in Iraq communications and this would not meet the probable cause standard of probable cause to believe they are agents of a foreign power - as that term is now defined? No way.
C. Novel legal issues: I can believe that actually, if they were not asking to track "only" insurgent communications. Here are a few possibilities:
(i). Dragnetting all communications from an area. This would present a novel argument. In general, our Constitution does prohibit general warrants from issuing. So here they might be trying to argue that they wanted to dragnet all communications from an area and it was likely that most communications would not involve US persons, although lots of communications would also not involve "agents of a foreign power" even under the expansive FISA definition. It may be that there has been resistance by the Court to allowing dragnet warrants, especially where the communications are being collected in the US. OK - this isn't all that mindbogglingly perplexing and should have been something that would be an open and discussed topic for years now - how are we going to address situations where we might get a benefit (maybe, maybe not) but trying to scarf up all communications in an area? What if many/most don't involve US citizens? Does the Constitutional prohibition against ever having general warrants issue include where they are mostly issued against non-citizens, even though those non-citizens communications are being searched and seized on US soil by what is supposed to be a government limited to relatively enumerated powers? If this was the issue - then they ought to just cough that hairball up and quit flopping around convulsing. It's a grown up country with grown up courts - we can handle the discussion.
(ii) Trawling through reams of stored communications. Ditto on this issue. The Fourth Amendment doesn't contemplate a court issuing a warrant that would allow all kinds of people's communications to all be searched and seized based on some kinds of criteria that only "some" will be submitted to more thorough searches and only some of those to more, etc. etc. It doesn't contemplate a court having authority to issue that kind of warrant and so they then have the questions of well - if it is not horribly invasive, just meta data initially, etc. and if it is targeted to just get to insurgent traffic (depsite what all may be searched on the way there) is that ok? Can a court issue that kind of warrant? Again, this isn't something beyond the ken of public discussion or even published court decisions. In neither (i) or (ii) is the issue 4th amendment protections for insurgents, bc if you had insurgent communications you wouldn't be dragnetting or trawling and you'd get that non-general warrant asap.
This is pretty darn ez - and it seems to me that is where the whiffling on the prior communications to you comes in: "We should not have to prove probable cause, and/or obtain a court order for foreign to foreign communications overseas" and "Should we be spending time having to go through such a process to intercept foreign to foreign communications?"
Note the foreign to foreign - not agent of foreign power to foreign even.
So I'm thinking what we have is an absolutely normal issue -not some super duper ultra secret concept - of how much unfettered, unsupervised, unencumbered, subject to any use or abuse, foreign communications trawling should the Executive Branch have and also if the foreign to foreign communications that pass through US stations are subject to the prohibitions on general warrants issuing if the Exec Branch wants to dragnet communications or trawl through stored communications - - - for any reason, for a nat security reason, with no minimization, with some minimization, where there may be some US communications included, where there may not, where many outsourced hands will be touching the communications without good oversight, where they will not, etc. etc.
How mind boggling would it be if this nation couldn't have those discussions openly?
(iii) With Clement as Acting AG for the day, one question becomes to what extent he is fully briefed in on "teh program." In the oral arguments for the Hamdan/Padilla cases, he made arguments to the court about the US not engaging in torture or anything even like torture, that were soon proven to be pretty darn false - with waterboarding, specifically treated as torture by our legal system before - just one of the items on the list and with torture deaths also on tap. Now, he either lied to the court or, suspicions or no, the operative portions of DOJ carefully kept the Solicitor General's office out of the loop on being actually briefed on the torture. This could be the situation with elements of teh program as well. The prior SolGen may or may not have known, after the hospital showdown, what was going on. But if he is gone and never communicated it on to Clement, then they may be wanted to keep as much from being specifically and technically disclosed to Clement as possible, prior to him having to make arguments to the Court where they might again want to rely on his ability to make absolutes based on his lack of direct personal knowledge to the contrary. So, if they began to drift from the familiar tapping of an insurgent's phone lines into blanket collections or email/stored communications robbing etc. then they might have been puzzling a bit on how do we go to Clement and who tells him what.
(iv) Another'novel' argument might be presented if the FISA court had already issued its own ruling on some of this - for example dragnetting or trawling, and had said it did not meet the probable cause to believe the intercepts were of agents of a foreign power standard - in an earlier or different setting; but Cheney's boys and the loyal Bushies wanted to just invoke imperial privilege and ignore the courts like they had been doing for 5 or 6 years, unfettered - maybe relying on the fact setting as making for a better national security override of the court's authority. It would make sense, then, that the hold up was when it hit the DOJ crew who might have already gone down in flames on this issue before the court at an earlier date. They may have been struggling to try to find some "distinguishing feature" to present to the court because they knew they could not make a good faith probable cause assertion at the end of the 72 hours bc what they were going to do lay squarely within something that the court had prohibited. This would also explain not wanting to go to, or through, Clement - as so far he was one of the few in the Admin who had been kept somewhat clean from lawbreaking and scandals (although his oral argument on Padilla/Hamdan is a big slime puddle that everyone walks around an pretends isn't there).
(v) FISA defines the AG to include the AG, or an acting AG, or the DAG. McNulty had resigned the 14th. Gonzales was travelling and had officially made Clement Acting. This was a bit of an issue in and of itself. You have to wonder why McNulty's name never appears at all in the timeline discussion. He hadn't actually left yet.
(vi) Also, as Comey's testimony going on somewhat concurrently indicates - there are consequences to making someone acting AG. You can't have an AG and an Acting AG on the same matter at the same time - I think it causes a fissure in time or something, but more importantly, legally only one of the could act. So if the determination was made to go through AGAG, then it would seem they also had to revoke the appointment to Clement. So it would be interesting to know definitely that Clement was not still acting at the time Gonzales made the call. But there's a little novel situation - AG is travelling, has a DAG who resigned the day before and leaves an acting who isn't fully briefed on teh program and doesnt' really want to be. So who authorizes? Especially if the authorization is likely to get a very negative reaction from the court at the end of the 72 hour?
****************
Those matters of "novel issues" aside, here are some questions that would still be nice to have answered:
1. Did the FISA court approve the application at the end of the 72 hours?
2. If not, (a) have charges been brought and/or (b) has the FISCt taken any action against the applicant?
3. Had the FISA court ruled, prior to this incident, on the type of activity being contemplated?
4. Where only foreign insurgent on foreign soil communications involved in the contemplated activity?
5. Where any forms of surveillance commenced prior to this particular warrant request for the contemplated activities.
6. Was the acting AG fully briefed on all aspects of teh program(s)?
7. Was the delegation to the acting AG revoked prior to Gonzales making the calls?
8. Why was McNulty not consulted in any fashion?
9. If the Executive Branch is authorized, without warrant, to intercept any and every foreign to foreign communication with no oversight, no requirement that Gov employees instead of outsourced personnel be used, no requirements to delete non-national security info etc. - - - how is that not a recipe for tremendous misuse and abuse?
I'm sure there are other and better - but that's my off the cuff top picks
paul wrote on October 1, 2007 1:46 PM:The next time I sit on my ass and miss a deadline that turns out to be important, I'll explain that it was because I had to explore some novel legal issues.
Even if there had been interesting legal issue involved, the time to work through those issues is as soon as the court decisions come down, not in the middle of a time-critical investigation. It's like a police department hearing about a recall of the tires on their squad cars and waiting till they're about to start a high-speed chase to swap the tires out.
The Oracle wrote on October 2, 2007 12:35 AM:Boyd is a liar.
There was a similar incident that happened just before the 9/11 attacks.
One of bin Laden's suspected suicide pilots was arrested in the U.S. Midwest weeks before 9/11 after flight school personnel grew suspicious of this guy only wanting to learn how to fly 747s, not land or take them off.
FBI field agents sent request after request to the Bush administration's Justice Department, headed by John Ashcroft, pleading with Bush's incompetent cronies that the FBI field agents be allowed to search this guys personal belongings.
Remember, this arrest happened just days after Bush was briefed that "Bin Laden Determined to Strike Inside the U.S." by a CIA briefer while Bush was on vacation, and at the same time our intelligence agencies were on red alert because of all the signs that a terrorist attack was imminent.
The Bush Justice Department had three weeks in which to get a FISA search warrant for this foreign national picked up in August 2001 (versus several hours), but Bush Justice Department and FBI officials did nothing.
The increasingly frantic Midwest FBI field agents finally worked a deal to have this guy extradited to England so that finally his personal effects could be searched upon entering England, but by then it was too late...and almost 3,000 people died.
So, it is quite obvious that the Bush criminals view the FISA court as a hindrance and something that should be avoided at all costs...including the cost of innocent lives and the lives of our soldiers.
The criminally insane Bushites hate judicial review and judicial oversight of any kind, unless the review is being done by one of their hand-picked crony Republican pals who will just rubberstamp what BushCo is doing anyway.
Ultimately, this anti-FISA, anti-judiciary, anti-federal-court attitude that was Bush/Cheney-institutionalized before 9/11 and cropped up again back in May was the problem and led to people dying.
And Boyd, you know this is the case, so stop trying to cover for your criminal, and criminally insane, bosses.
asdf wrote on October 2, 2007 6:18 AM:The NSA doesn`t target people, it targets numbers. The odds that the NSA could reasonably prove to the the court that it knows the people associated with an Iraqi (trow away?) pre-paid cell phone are rather slim.
Anarchism, tens of armed gangs and acid/electric drill tortured bodies dumped on the street every day are one thing, but you should see the Iraqi phonebooks! What a mess, There have not been any updates in years. In the meantime a lot of people may have moved. Millions to be exact, according to UNHCR.
I cant find the story on how many Iraqi`s have the following voice mail message:
bennn wrote on December 18, 2007 7:00 AM:the person you are trying to reach has been bombed, please leave a message after the beep. This comes close:
http://www.usatoday.com/tech/wireless/phones/2006-08-20-cellphones-popular-iraq_x.htm
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